MARCIA G. COOKE, District Judge.
THIS MATTER was referred to the Honorable Jonathan Goodman, United States Magistrate Judge, for a Report and Recommendation on Plaintiffs' Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members (ECF No. 74). On January 10, 2011, Judge Goodman issued a Report (ECF No. 139), recommending that the Motion to Conditionally Certify Collective Action (ECF No. 74) be granted. No objections have been filed, and the time for objections has passed.
I have considered Judge Goodman's Report and Recommendation, and have made a de novo review of the record. I find Judge Goodman's Report and Recommendation cogent. Accordingly, I
JONATHAN GOODMAN, United States Magistrate Judge.
This cause is before me for a report and recommendations on the Motion of Plaintiff,
Plaintiff worked as a Retail Account Executive for Defendant in the Miami metropolitan area from January 2007 to March 2010. (DE# 9, ¶ 17; DE# 101, p. 16.) Plaintiff claims that except for during the first two months of his employment, he at various times worked more than forty hours per week and was a non-exempt employee under the Fair Labor Standards Act, 29 U.S.C. § 207, but was never paid overtime as that Act required. (DE# 9, ¶¶ 19-21.) Plaintiff believes there are other similarly situated individuals who would, if offered the chance, join his lawsuit against Defendant. (E.g. id. at ¶ 15; DE# 74, p. 13.)
Defendant is a wireless communications provider with approximately ninety-million subscribers in the United States. (DE# 101, p. 2.) Defendant sells its products directly through approximately twothousand company-owned retail stores nationwide and indirectly through generally exclusive relationships with independent stores (the "local dealer channel") as well as through non-exclusive arrangements with large national retail chain stores (the "national retail channel"). (Id.) Through its local and national retail channels, Defendant operates in all fifty states, Puerto Rico, and the District of Columbia. (Id. at p. 3.) National retail channel retailers are "big box" stores such as RadioShack, Best Buy, and Wal-Mart. (Id.) Local retail chain retailers vary from "mom and pop" single-shop enterprises to businesses with multiple locations in multiple markets. (Id.)
Plaintiff seeks conditional certification of the following class: all "`Retail Account Executives' who were paid salary plus commissions and who earned less than $100,000.00 per year for any period of their employment," with Defendant, AT & T Mobility Services LLC, "within the statute of limitations and who were not paid full and proper overtime compensation for hours worked over forty (40) in a workweek." (DE# 74, p. 1.)
In support of his motion, Plaintiff offered his own affidavit and those of eight other individuals who worked as either local or national Retail Account Executives for Defendant. (Reyes Aff. DE# 75-1; Aviles Aff. DE# 75-2; Birch Aff. DE# 75-2; Feliciano Aff. DE# 75-2; Fernandez Aff. DE# 75-2; Salden Aff. DE# 75-2; Hicks Aff. DE# 76-1; Urquhart Aff. 111-1; Roggensack Aff. DE# 115-1.) All of the affiants are already opt-in plaintiffs except for Hicks, who indicated that he will likely opt-in if this case is certified as a collective action. (DE# 76-1, ¶ 26.) Plaintiffs affidavit also indicates that two additional individuals, Teresa Freeman and Luis Granados, would opt-in if they were given formal notice of this case. (DE# 75-1, ¶ 26.)
The affiants worked in the following locations: Miami-Dade, Broward, Collier, Lee, and Hillsborough counties in Florida; Bergen County in New Jersey; the State
To ensure that these duties were performed in a consistent manner, Defendant purportedly had specific training programs that all Retail Account Executives were required to complete. (E.g., id. at ¶ 11.) All affiants claim to have been responsible for regularly scheduled retail dealer site visits and for gathering sales data on each retail dealer and reporting that information to Defendant for further processing. (E.g., id. at ¶¶ 13 & 15.) All affiants also state that they regularly worked more than forty hours per week but received no overtime pay. (E.g., id. at ¶ 17.)
Plaintiff, Birch, and Fernandez specifically describe in their affidavits a meeting on or about May 4, 2009, at which they received an FLSA classification notice informing them that, based upon an internal audit, Defendant had determined that all Retail Account Executives were non-exempt and thus eligible to receive overtime pay.
Urquhart and Roggensack provide more details than the other affiants regarding claimed similarities among Retail Account Executives' training and the job as practiced in serving the local versus national dealer channels.
In addition to submitting the affidavits, Plaintiff provided other documentation in support of his motion. As mentioned above, Plaintiff provided copies of a May 4, 2009, "Notification for FLSA Classification," which indicates that Defendant audited the position of Retail Account Executive and decided to reclassify it as "Non-Exempt (eligible for overtime)" from "exempt (not eligible for overtime)." (E.g., DE# 75-1, p. 8.) At the hearing, defense counsel, in response to a question, explained that this notice went to all categories of account executives, even though it referenced only retail account executives. Plaintiff also attached to his motion computer printouts, all printed on the same day, from Defendant's website, advertising Retail Account Executive positions in Anchorage, Alaska, Pittsburg, Pennsylvania, Shreveport, Louisiana, and Bethpage, New York.
29 U.S.C § 216(b) of the Fair Labor Standards Act authorizes one or more employees to bring a collective action against their employer for unpaid minimum wages or unpaid overtime "for and in behalf of himself or themselves and other employees similarly situated." Unlike a Rule 23 class action, in which each person falling within a certified class is bound by the judgment unless he or she opts out, each putative plaintiff must affirmatively opt-into a § 216(b) class action. Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir.2001).
The Eleventh Circuit suggests that district courts use a two-stage process in deciding whether to create an opt-in class and to facilitate notice. Id. at 1219.
The first stage, where the Court currently finds itself, is known as the "notice" or "conditional certification" stage. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260-61 (11th Cir.2008). At this stage, a district court may grant conditional certification if a plaintiff demonstrates a reasonable basis to believe that: (1) there are other employees of the Defendant who desire to opt-in and (2) that these other employees are "`similarly situated' with respect to their job requirements and with regard to their pay provisions." Dybach v. State of Fla. Dep't of Corrs., 942 F.2d 1562, 1567-68 (11th Cir. 1991); Morgan, 551 F.3d at 1260.
To satisfy the reasonable basis test, a plaintiff must have "more than 'only counsel's unsupported assertions that FLSA violations [are] widespread and that additional plaintiffs'" exist. Morgan, 551 F.3d at 1261 (quoting Haynes v. Singer Co., 696 F.2d 884, 887 (11th Cir.1983)). A plaintiff "may meet this burden, which is not heavy," by making "detailed allegations supported by affidavits which successfully engage defendants' affidavits to the contrary." Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir.1996) (internal citation and quotation omitted). See also Morgan, 551 F.3d at 1261 (describing this burden as "not particularly stringent," "fairly lenient," "flexible," "not heavy," and "less stringent than that for joinder under Rule 20(a) or for separate trials under
The requirements for conditional certification under § 216(b) "are independent of, and unrelated to, the requirements for class action under Rule 23 of the Federal Rules of Civil Procedure." Grayson, 79 F.3d at 1096 n. 2.
The Eleventh Circuit has stated that a "district court's broad discretion at the notice stage [when deciding whether to conditionally certify a class] is thus constrained, to some extent, by the leniency of the standard for the exercise of that discretion." Morgan, 551 F.3d at 1261. Where, as here, a court has "minimal evidence" from the parties and discovery has not been completed, the typical result is that the motion is granted. Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1243 (11th Cir.2003) (quoting Hipp, 252 F.3d at 1216). But see, e.g., Holt v. Rite Aid Corp., 333 F.Supp.2d 1265, 1274 (M.D.Ala.2004) (more "carefully consider[ing] the submissions of the parties with respect to the collective action allegations" at the first stage because "the parties have conducted extensive discovery"). See also Morgan, 551 F.3d at 1262 (stating that "detailed pleadings and affidavits" may suffice to demonstrate reasonable basis that other employees are "similarly situated" and refusing to "hold that the [relatively substantial] amount of discovery that preceded the first-stage certification here is required")
I find that Plaintiff has shown a reasonable basis to believe that there are other employees who desire to opt-in. One of the affiants, Michael Hicks, states in his affidavit that if "this case is certified as a Collective Action, I will likely opt-in and become a plaintiff." (DE# 76-1, p. 6, ¶ 26.) Four other affiants, Plaintiff, Aviles, Fernandez, and Birch, indicated they have spoken to at least one other person who would also opt-in. (DE# 75-1, p. 6, ¶ 26; DE# 75-2, p. 5, ¶ 26; DE# 75-2, p. 12, ¶ 26; DE# 75-2, p. 34, ¶ 26.) Moreover, seven allegedly similarly situated employees have already filed consents indicating that they desire to join should this case be certified. (DE# 5; DE# 8; DE# 10; DE# 11; DE# 17; DE# 103; DE# 114.)
It is therefore clear for purposes of a conditional certification analysis that a reasonable basis exists to believe there are other employees who desire to opt-in. See Tyler v. Payless Shoe Source, Inc., No. 22:05-CV-33F(WO), 2005 WL 3133763, at *3 (M.D.Ala. Nov. 23, 2005) (finding that three consents to join filed by putative optin plaintiffs is sufficient to satisfy this prong); Vondriska v. Premier Mortg. Funding, Inc., 564 F.Supp.2d 1330, 1334 (finding that affidavits of other allegedly similarly situated employees expressing a desire to opt-in satisfies this prong): Bell v. Mynt Entm't, LLC, 223 F.R.D. 680, 683 (S.D.Fla.2004) (the affidavits of seven optin plaintiffs indicating they were aware of others expressing desire to join suit if certified are sufficient).
I also find that Plaintiff has met his burden at this preliminarily stage and demonstrated a reasonable basis to believe that there is a similarly situated class of employees, including those who would likely opt-in this lawsuit, of all "`Retail Account Executives' who were paid salary plus commissions and who earned less than $100,000.00 per year for any period of their employment," with Defendant, AT & T Mobility Services LLC, "within the statute of limitations and who were not paid
As I detail above, Plaintiff provided evidence that tells a consistent story about similarly situated employees. To be more specific, Plaintiffs evidence demonstrates that each affiant worked as a Retail Account Executive, that in that position they had certain duties standard to all other Retail Account Executives, that each was paid in the same manner, that each regularly worked more than forty hours per week and that each was paid in the same way that did not include overtime pay. See Dybach, 942 F.2d at 1567-68 (holding that to gain conditional certification a plaintiff need only show that the class is "`similarly situated' with respect to their job requirements and with regard to their pay provisions"). See also Vondriska, 564 F.Supp.2d at 1335 (granting conditional certification where same facts shown and declining to consider alleged duty or location variations); Scott v. Heartland Home Fin., Inc., No. 1:05-CV-2812-TWT, 2006 WL 1209813, at *3 (N.D.Ga. May. 3, 2006) (same); Pendlebury v. Starbucks Coffee Co., No. 04-CV-80521, 2005 WL 84500, at *3 (S.D.Fla. Jan. 3, 2005) (granting conditional certification and refusing to consider factual dispute raised by defendant at conditional notification stage where plaintiff offered affidavits establishing a similarly situated class).
Defendant opposes Plaintiffs motion because it contends that the term Retail Account Executive actually encompasses three separate jobs with different duties. (DE# 101, p. 3.) Defendant states that there are Retail Account Executives, who work in the local dealer channel, National Retail Account Executives, who work in the national retail distribution channel, and "hybrids," who work in both channels in some parts of the country. (Id. at p. 1.) Defendant claims that Plaintiff, who worked only in one metropolitan area with only one national chain (i.e., RadioShack), was a National Retail Account Executive. Therefore, says Defendant, Plaintiffs experience cannot be representative of the full spectrum of Retail Account Executive positions and he could not know about the jobs of other types of Retail Account Executives. Defendant also argues that the other affidavits attached to Plaintiffs initial motion suffer from similar defects.
Defendant filed a substantial number of affidavits with its response. (DE# 102.) These affidavits detail claimed differences between not only the duties of the three purportedly separate jobs, but also between any given employee's duties within the same job.
For instance, according to Michael Combs, a hybrid Retail Account Executive from Southern Oregon, national retailers restrict his ability to train their employees and much of what he uses to train them is developed "by a team which includes Area Retail Sales Managers and National Retail Sales Managers." In contrast, Combs says in his affidavit, local retailers allow him more freedom to "develop" and "customize" his own trainings for local retailers' employees based upon Defendant's official trainings. (DE# 102, p. 34, ¶¶ 4-5.) Combs also notes that among local retailers with whom he works, some, including ProWireless, consult him on operational issues, but most do not. (Id. at ¶ 23.) Moreover, Jeff Chancellor, Defendant's Senior Sales Program Execution Manager, states that some National Retail Account Executives are assigned only to a single store while others are assigned to territories that may include multiple different retailers, thereby creating "an obvious different set of challenges and opportunities." (DE# 102, p. 28, ¶ 10.)
Similar to strategies commonly and expectedly used by employers named as defendants
At this stage of the proceedings, a defendant's burden is, for all practical purposes, to attempt to demonstrate that a plaintiff has presented insufficient, not factually wrong, evidence. In fact, at the hearing, defense counsel, in attempting to show that his approach would not lead to an impermissible credibility conclusion from competing affidavits, argued that the court could assess credibility in the context of determining the adequacy of Plaintiffs allegations about similarly situated employees.
In keeping with the practical approach which shuns credibility battles at the first stage,
Nevertheless, a defendant is certainly free to offer contrary evidence in an attempt, for instance, to demonstrate that the plaintiff has provided only conclusory allegations or has omitted important information. In fact, while Defendant likely did not need to file so many affidavits, it was certainly appropriate for it to file affidavits or other evidence in an effort to demonstrate that Plaintiffs initial motion and evidence oversimplified the purported diversity within the Retail Account Executive category. After a defendant submits evidence to promote that permissible purpose, it is incumbent upon a plaintiff to provide additional evidence to meet the defendant's evidence. This is surely what is contemplated by the Eleventh Circuit's instruction that a plaintiff must "successfully engage defendants' affidavits" in opposition
To the extent that Defendant's mass of affidavit evidence supports the defense theory that there are actually three positions encompassed by the Retail Account Executive category, however, I find Plaintiff "successfully engaged" these affidavits by filing Urquhart and Roggensack's affidavits. These two additional affidavits establish sufficiently for purposes of conditional certification that all three types of Retail Account Executive are similarly situated under § 216(b). It is possible that the affiants whose affidavits were attached to Plaintiff's original motion may also be able to provide more specific information supporting certification at the second stage. It is also possible that these affiants cannot do so and that Plaintiff will be unable to demonstrate that, despite Urquhart and Roggensack's contentions, the three positions are in fact similarly situated. This is clearly a determination more suitable (and which may even be successful) at the stage two, final certification analysis, after the parties have conducted discovery sufficient to hash out these factual issues. Morgan, 551 F.3d at 1260 (the "decertification decision is one where the court 'makes a factual determination on the similarly situated question'") (quoting Hipp, 252 F.3d at 1208). Accord Morden, 2006 WL 2620320 at *3.
That said, it is important to note that Plaintiff provided more than just a few affidavits supporting the existence of a similarly situated class of employees. As also discussed above, Plaintiff filed a notice created by Defendant that, without any distinction between the argued categories of executive, states that Defendant itself concluded that the job "Retail Account Executive" is non-exempt and eligible for overtime. At the hearing, Defendant acknowledged not only that it gave such a bulletin to all Retail Account Executives, but also confirmed that an email containing this information was sent to
In addition, defense counsel, at the hearing, represented that Defendant did not distribute by email a similar notice or bulletin, advising affected employees that the non-exempt decision was, upon further analysis, only tentative, had been reconsidered and no longer applied. Moreover, the news about the inapplicability or reconsideration of the nationally broadcast (by email) memo was sometimes distributed in local or regional joint meetings attended by all three categories of account executives.
Last, but certainly not least in connection with Defendant's efforts to submit evidence to support its "the-position-is-actually-three-positions" and "the-job-dutiesvary-among-geographic-markets" theories, Plaintiff filed website printouts advertising identically described Retail Account Executive positions in nine states or cities spread across the United States.
Defendant claims that too many "significant differences exist between and among the three jobs themselves" to warrant collective treatment. (DE# 101, p. 9.) But Defendant's own affidavits are at times themselves contradictory as to whether this is true. For instance, Chancellor's
Given the leniency with which I must approach my analysis, it would be inappropriate to resolve factual ambiguities only overtly manifested in Defendant's own evidence against Plaintiff (as Plaintiff's evidence is that all Retail Account Executives share similar compensation terms). The contradictions in Defendant's own submissions also underscore the practical conclusion that it is premature before discovery at the conditional certification stage to make the requested factual findings. This is especially true where, as here, Plaintiff has offered consistent evidence of similarity and, when the sufficiency of the detailed nature of that evidence was questioned in Defendant's response, Plaintiff produced more-specific affidavits that on their face address Defendant's concerns.
Moreover, to the extent Defendant requests that the Court delve into individualized classification questions, I believe a fair reading of the law is that this is not appropriate in a situation, such as here, where the Defendant uses the same general term to describe all members of the class and discovery has not yet been conducted. Compare, e.g., Holt, 333 F.Supp.2d at 1274 (suggesting that courts will only conduct an individualized inquiry into class members' differences at this stage where "the parties have conducted extensive discovery"); with Aguirre v. SBC Commc'ns, Inc., No. Civ.A. H-05-3198, 2006 WL 964554, at *7 (S.D.Tex. April 11, 2006) (declining to conditionally certify a class in part because it was undisputed the requested class included employees with two different job titles); and also with Hipp, 252 F.3d at 1219 (affirming conditional certification despite defendant's contention that each potential class member was unique and required an individual analysis of their working conditions because they all held same job title and alleged same treatment).
In this regard, this case is similar to Morden v. T-Mobile USA, Inc., 2006 WL 2620320 at *3, a case also involving employees of a wireless telephone equipment and service company. While Morden does not provide sufficient factual detail for me to say that the employees at issue there were identical to the requested class here, the description in that case suggests they may have performed similar duties. Id. at *1. Moreover, in Morden, the defendant argued against conditional certification on the ground that "certain exemption defenses may apply that will require the court to make individual assessments of all the plaintiffs." Id. at *3. That court refused to consider these questions at this first stage and noted that to apply such a "stringent analysis" at this stage would be "contrary to the broad remedial policies underlying the FLSA." Id. The Morden court advised that it would only make that analysis after discovery is complete. Id.
Likewise, whether the requested class in this case actually includes similarly situated individuals (and thus serves judicial economy) is a question more appropriately addressed at the decertification stage, when more specific information will be available. Vondriska, 564 F.Supp.2d 1330 (also suggesting that waiting until the decertification stage to consider these issues is the general practice in the Eleventh Circuit). (See also DE# 101, p. 24 (admitting that "the court need not reach the
Of course, none of this evidence which now supports Plaintiff's motion at this preliminary first stage is conclusive on the issue of whether the exempt/non-exempt classification was correct or whether the requested class should ultimately remain certified. Should the District Court adopt my recommendation, Defendant may well still prevail when it inevitably moves for decertification. However, these other pieces of evidence certainly bolster the conclusion that it is reasonable to believe there exists a similarly situated class of employees. Simpkins, 2008 WL 3927275 at *7 (noting that defendant's decision to classify all employees with same title as exempt from overtime under same FLSA exemption lent credence to plaintiff's cookie-cutter affidavits at conditional certification stage); Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997) (holding there is "no question, therefore, that plaintiffs have shown a factual nexus between their situation and the situation of other current and former" employees where defendant admitted it had a uniform policy regarding them all).
Assuming that the District Court adopts my recommendation to grant Plaintiff's motion to conditionally certify the class, this may result in a "be careful what you wish for" scenario
Plaintiff requests that the Court order Defendant to provide him with a list of all putative class members' names and addresses in order to effectuate the notice process. (DE# 74, p. 19.) Plaintiff cited several cases supporting his request. E.g., Anglada v. Linens 'N Things, Inc., No. 06 CV 12901(CM)(LMS), 2007 WL 1552511, at *8 (S.D.N.Y. May 29, 2007) (granting same request). I believe this is a reasonable request given that the same information would likely be available through a formal request for production or interrogatory and without this information Plaintiff will be unable to effectuate any order granting conditional certification. See Morden v. T-Mobile USA, Inc., No. C05-2112 RSM, 2006 WL 1727987, at *3 (W.D.Wash. June 22, 2006) (granting motion to compel all names of those in putative class before conditional certification because the names are necessary to allow plaintiffs to properly define class).
Defendant did not object to or discuss this request in any way in its response. At the hearing, defense counsel confirmed that it could produce such a list within 30 to 45 days. More specifically, defense counsel explained that his client could likely obtain the information in significantly less time for certain employees but noted that Defendant had merged with Cingular (another wireless telephone company) and the information concerning the former Cingular employees might take more time to retrieve.
Consequently, I respectfully recommend that if the District Court adopts my recommendation and conditionally certifies the requested class, that the District Court also order Defendant to provide Plaintiff with a list of all putative class members' names and addresses for the sole purpose of carrying out notice. Consistent with Defendant's representations at the hearing as to the time necessary to produce the information, I also respectfully recommend that the District Court order Plaintiff to provide the names of putative class members that were its employees prior to the merger within 30 days, but to allow it 45 days to provide names of those putative class members who became its employee after that merger.
Plaintiff attached a proposed notice to its motion and requested that it be allowed to notify all potential class members by mail and that the notice be posted at each of Defendant's locations at which such potential class members are employed. (DE# 77-1.) Defendant did not object to the content of this notice or Plaintiff's request that it be posted at such locations either in its response or at the hearing. I have personally reviewed the notice and
Consequently, I also respectfully recommend that the District Court approve the form and content of Plaintiff's proposed notice and require that Defendant post it as requested.
For the reasons described above, I respectfully recommend that the District Court:
Pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Rule 4(b), the parties have fourteen (14) days after being served with a copy of this Report and Recommendations to serve and file written objections, if any, with the Honorable Marcia G. Cooke, United States District Judge. Each party may file a response to the other party's objection within 7 days of the objections. Failure to timely file objections shall bar the parties from a de novo determination by the District Judge of an issue covered in this report and bar the parties from attacking on appeal the factual findings contained herein. Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir.1993) (citing LoConte v. Dugger, 847 F.2d 745, 749-50 (11th Cir.1988)).
Nineteenth century writer Sarah Orne Jewett used a similar adage in A Native of Winby, a short story published in the May 1891 edition of The Atlantic Monthly (vol. 67, Issue 403). Specifically, she wrote: "Be careful what you wish for in this world, for if you wish hard enough you are sure to get it. I once heard a very wise man say this, and the longer I live the more firmly I believe it to be true." http://digital.library.cornell.edu/cache/ c/6/f/c6fld36383ff65e859ca24648b1a3302/atla 0067 (last visited Jan. 6, 2011).
Even contemporary musicians and singers invoke this maxim. For example, rap/hip-hop artist Eminem, on his "Relapse" album, released a bonus track song in 2009 entitled "Careful What You Wish For." In that song, the Detroit-area native gave this musical advice: "So be careful what you wish for 'Cause you just might get it." http://www.lyricsmode. com/lyrics/e/eminem/careful_what-you-wish_ for.html (last visited Jan. 6, 2011). In addition to using a mildly modified version of the old adage, Eminem (a/k/a Marshall Mathers and "Slim Shady") also said a lot of other things in the song's lyrics. Many of those these lyrics are too graphic, too earthy and/or too provocative to repeat here.
Oscar Wilde (1854—1900), who often wrote of the human condition during the height of the Victorian Era in England in the late 1800s, used a similar phrase—"When the gods wish to punish us, they answer our prayers"—in An Ideal Husband (1893), http:// www.quotationspage.com/search.php3? search=wish&startsearch (last visited Jan. 10, 2011). Approximately a century later, actress Meryl Streep, playing the role of Karen Bixen, used a slightly changed line— "When the gods want to punish you, they answer your prayers"—in the 1985 movie Out of Africa. http://tvtropes.org/pmwiski/pmwiki. php/Quotes/BeCarefulWhatYouWishFor (last visited Jan. 10, 2011).
